Friday, May 8, 2009

ADAAA 2008 Retroactivity? Not a Chance.

The Americans with Disabilities Act Amendments Act of 2008 (text of ADAAA 2008) went into effect on January 1, 2009.  The ADAAA 2008 so greatly expanded the definition of "disability" that some observers have opined that "Everyone is Disabled".  While employers cannot escape the effects of the ADAAA 2008 in the future, what about pending cases and past acts of alleged discrimination?  Can employees in such circumstances take advantage of the new, broader definition of disability?  Let's go to the scoreboard.

The District of Connecticut was kind enough to provide us with a string cite for the proposition that the ADAAA 2008 is not retroactive:

Moreover, it appears that every court that has addressed this issue, which includes a number of federal district courts and at least one federal appeals court, has concluded that the 2008 Amendments cannot be applied retroactively to conduct that preceded its effective date. See Kiesewetter v. Caterpillar, Inc., 295 Fed.Appx. 850, 851 (7th Cir.2008); Supinski v. United Parcel Serv., Inc., No. 3:CV-06-0793, 2009 WL 113796, at *5 n. 6 (M.D.Pa. Jan. 16, 2009); Walstrom v. City of Altoona, No. 3:2006-81, 2008 WL 5411091, at *5 n. 3 (W.D.Pa. Dec. 29, 2008); Hays v. Clark Prods., Inc., No. 1:07-CV-328, 2008 WL 5384300, at *6 n. 3 (S.D.Ind. Dec. 18, 2008); Levy ex rel. Levy v. Hustedt Chevrolet, No. 05-4832(DRH)(MLO), 2008 WL 5273927, at *3 n. 2 (E.D.N.Y. Dec. 17, 2008); Knox v. City of Monroe, No. 07-606, 2008 WL 5157913, at *5 n. 10 (W.D.La. Dec. 9, 2008); Gibbon v. City of New York, No. 07-Civ-6698, 2008 WL 5068966, at *5 n. 47 (S.D.N.Y. Nov. 25, 2008).
Moran v. Premier Educ. Group, LP, 599 F.Supp. 2d 263 (D.Conn 2009).  That's a handy cite if you ever need to make the case.  The Fifth Circuit has also held that the ADAAA 2008 is not retroactive.  EEOC v. Agro Distrib., LLC, 555 F.3d 462, 469 n. 8 (5th Cir. 2009).  Just last week, the 10th Cir. did not reach the issue but did note that "courts consistently have held that the ADAAA does not apply to conduct occuring before its enactment."  Durham v. McDonald's Restaurants of Okla., Inc., 2009 WL 1132362 (10th Cir. 2009)(citing Moran and Agro Distrib.).

That's three circuits (admittedly dicta in one) and seven district courts!  Still not enough?  The Department of Labor's Office of Federal Contract Compliance Programs (DOL OFCCP) has some FAQs including: "Is the ADAAA 2008 retroactive?"  Their response? "We do not believe so."

In law (employment law in particular) there are few certainties.  The decisions seem pretty one-sided in this area, however.  ADAAA 2008 retroactivity?  Not a chance.

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